Order on Board

07.02.2022

1. Petitioner has preferred this writ petition assailing impugned order dated 08.02.2019 passed by Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) in Misc. Civil Appeal No.13 of 2017 whereby learned Additional District Judge dismissed the miscellaneous appeal.

2. Facts of the case in nutshell are that petitioner/plaintiff filed a suit for declaration of title and permanent injunction along with an application for grant of temporary injunction. Upon hearing application for grant of temporary injunction, it was dismissed by the trial Court, which was put to challenge in an appeal under Order 43 of Code of Civil Procedure, 1908 (in short ‘CPC’). Learned counsel for petitioner/plaintiff appeared before Additional District Judge, Dhamtari to pursue miscellaneous appeal, where it was informed by learned counsel for the respondents/defendants that civil suit itself was dismissed on 23.06.2014 for want of prosecution. Thereafter, petitioner filed an application under Order 9 Rule 9 of CPC for restoration of suit on the ground that plaintiff became seriously ill and suffered partial paralysis. Upon hearing the parties, trial Court allowed application under Order 9 Rule 9 of CPC. Order passed in application under Order 9 Rule 9 of CPC was challenged by respondents before the High Court in civil revision, which was allowed on the ground that application under Order 9 Rule 9 of CPC was filed with delay, but application under Section 5 of the Limitation Act for condonation of delay was not filed, hence, trial Court erred in allowing main application under Order 9 Rule 9 of CPC without condoning delay to be erroneous and remanded back the case to trial Court. After receiving case back on remand by trial Court, petitioner submitted an application under Section 5 of Limitation Act in support of application filed under Order 9 Rule 9 of CPC. Learned trial Court upon considering the grounds raised in application under Order 9 Rule 9 of CPC, application under Section 5 of Limitation Act as well as evidence brought on record by petitioner and hearing the respective parties, dismissed application under Order 9 Rule 9 of CPC observing that there is contradictory statement between plaintiff and his power attorney holder. Medical documents with respect to treatment as pleaded is not placed on record and there is no satisfactory explanation for delay in filing application under Order 9 Rule 9 of CPC. Order passed by trial Court on 13.10.2017 was put to challenge in miscellaneous appeal before Additional District Judge, Camp Court, Kurud, District Dhamtari under Order 43 Rule 1 (c) of the CPC, which also came to be dismissed by impugned order.

3. Mr. Prafull N. Bharat, learned senior counsel for the petitioner would submit that petitioner filed suit for declaration of title and permanent injunction over the disputed land, measuring about 18.64 Acres. Petitioner/plaintiff is an adopted son of Late Rampyare Chandrakar. After death of Rampyare Chandrakar, he moved an application for mutating his name in revenue records before Tahsildar, which was allowed, but when it was challenged by defendants before the Sub Divisional Officer, he set aside the order of Tahsildar and remitted back the case for considering afresh to the Court of Tahsildar. After passing an order by Sub Divisional Officer, plaintiff filed civil suit. He submits that suit was filed by an Advocate, who was appearing, on the date fixed i.e. 23.06.2014, the case was posted for hearing on an application under Order 6 Rule 17 of CPC. On the said date, presence of plaintiff was not necessary, but it is to be argued by counsel engaged by him. He submits that as plaintiff himself was suffering with medical ailment as he suffered partial paralysis, he could not appear nor the power of attorney holder (his son) appeared before trial Court. It is argued that as plaintiff was suffering with ailment, took treatment from different hospitals, therefore, the